Monday, September 22, 2008

This weekend in Fort Worth at a training event sponsored by the Innocence Project of Texas (for whom I'm employed as a consultant) and the Texas Criminal Defense Lawyers Association, I had the privilege of meeting some of the people whose stories were highlighted in recent Grits posts about DNA exoneration cases.

Johnnie Lindsey was released Friday after spending nearly 26 years in prison on a false conviction for rape. He's a quiet, gentle and somewhat fragile-looking man who underwent chemotherapy treatments for cancer while in prison. Lindsey speaks with the commitment and humility of a cancer survivor about the value of a second chance, and pledged to work toward the release of other innocent people in prison now that he's out.

Lindsey's quick to flash a smile, and he lit up when I asked him if he'd gotten to see any family yet. He described a tearful reunion with his son on Friday, who was 2 years old when Johhnie was sent to prison. He'd been out of contact with his son since he was five, and now the young man is nearly the same age as was Lindsey himself when he was wrongly accused and convicted. Tiara Ellis of the Dallas News was there for their reunion and published this account:

For the first time in more than 25 years Friday, Johnnie Earl Lindsey embraced his son – and freedom.

"My son, he wasn't even 2 years old when I left," Mr. Lindsey said. "His name is Johnnie, but we call him J.J."

"Nah, it's just Jay," said 27-year-old Johnnie Cooper, his eyes red and wet with tears as he looked at the stranger he has been told is his father.

Lindsey's case, like so many others, resulted from a faulty eyewitness identification, but this one had a twist: Detectives on the case MAILED the lineup photos to the victim a full year after the incident occurred. Not only that, the photos in the array seemed to improperly single Lindsey out; his picture was one of two men in the photo array not wearing a shirt and the victim had described her assailant as shirtless. What's more, a jury ignored especially strong alibi evidence - a time card and a work supervisor who said if Lindsey weren't there the business' work would have stopped. That goes to show just how powerful eyewitness testimony can be, even when it's inaccurate.

I met another remarkable set of people over the weekend who were highlighted in a recent Grits post, including the family of Timothy Cole - a Texas Tech student falsely convicted of rape who died in prison in 1999 but was exonerated by DNA evidence this summer. They were joined by the rape victim in the case, Michele Mallin (along with her husband), who had misidentified him first in a photo array and then in court.

Their presentations dramatically moving, particularly watching Cole's 71-year old mother break down and cry as she told Mallin in front of the group that she forgave her, that they were all victims of injustice in her son's case. She blamed the Lubbock DA's office and two detectives, she said, but not Mallin. I've gotta admit I teared up hearing her story, and I think probably everyone in the room did. Cole's youngest brother, Corey Sessions, vowed to take his brother's story to the statehouse in Austin to back innocence-related legislative reforms.

Hearing Mallin relive the episode was equally brutal. She insisted both in her comments Friday evening and in private conversation that she'd never wanted anyone but the guilty man punished - that should go unsaid, one would hope, but clearly she felt terrible about what had happened and felt the need to explain herself. You couldn't help but feel sorry for her, to rush to tell her "Nobody thinks that!," but it's easy to understand why she would feel that way.

The police had another suspect in Mallin's case who turned out, based on recent DNA testing, to be the real rapist. In fact his name, Jerry Johnson, was even mentioned several times during Cole's trial by the defense as an alternative suspect, though only when Mallin, who was a witness, was out of earshot. Johnson began writing first the DA's office to say he'd actually committed Mallin's rape when the statute of limitations ran out, but nobody told Mallin or Cole's family until Johnson contacted Cole's mother earlier this year.

Mallin said she'd never been told there was another suspect and always assumed the police had other evidence Cole had committed the crime beyond her identification. They did not. She was 20 years old at the time and justly proud of herself for testifying in the trial and doing the right thing. She said she'd now been "victimized twice" and it's hard to deny it.

I'm not sure that reforms will help. I mean, Durham, NC is supposed to use these best practices in line-ups, which is all well and good until the D.A. wants to get re-elected and throws out the rules, putting together a no-wrong-answers line-up in order to get somebody indicted.

Between that and the open discovery law that was flouted repeatedly, it seems like that if a D.A. wants to break the rules, it takes extraordinary actions for anyone to do anything about it (and had the Duke case not been so high profile, I firmly believe that those extraordinary actions would not have been taken, Nifong would still be D.A. and we'd have seen a trial with the tainted ID allowed in court (certainly the judges on the case had no interest in making Nifong comply with open discovery despite repeated chances to do so).

What is done when there is only the word of one person against another person and no witnesses. What happens when a case should have been a misdemeanor if that and a young man was sent to prison by words given to the testifying person by the DA and threatened if not repeated, this persons children would be taken by CPS and CPS verified this would happen? Yes, this is a true story and a young man sits in prison when he did nothing but threaten himself and the other person started lying about the situation.

Our Criminal Justice System is so broken, everyone connected to the system should be released and the system started over.

Our country is in a horrible mess including the systems in the State of Texas. Maybe some new blood in the House and Senate would help.

There are some who do a wonderful job and others who just put out hot air and words and do nothing.

Why does it seem like half the time you hear about prosecutorial misconduct or negligence leading to the conviction of an innocent person, the prosecutor who tried the case is by now a sitting judge. In the Tim Masters case in Colorado, the two prosecutors that were reprimanded for their failure to turn over exculpatory evidence are both sitting judges.

As long as voters continue to vote people onto the bench based on their excellent conviction records as prosecutors, this type of thing will continue to happen.

I tell you who I'd like to hear from on this case--any of the original jurors. How could 12 people decide that the testimony of one person identifying a stranger was proof beyond a reasonable doubt in the face of a timecard and the supervisor's testimony of the alibi? I would really like to see how they feel about the fact that they sent a man to die in prison for a crime he did not commit when the reasonable doubt was right there in front of them. Thank you for your service, ladies and gentlemen.

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